767.47(1)(1) Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to:
767.47(1)(a)
(a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time.
767.47(1)(b)
(b) An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy.
767.47(1)(d)
(d) The statistical probability of the alleged father's paternity based upon the genetic tests.
767.47(1)(e)
(e) Medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts.
767.47(1)(f)
(f) All other evidence relevant to the issue of paternity of the child, except as provided in
subs. (2),
(2m) and
(3).
767.47(1m)
(1m) If the child was born in this state, the petitioner shall present a certified copy of the child's birth certificate or a printed copy of the record from the birth data base of the state registrar to the court, so that the court is aware of whether a name has been inserted on the birth certificate as the father of the child, at the earliest possible of the following:
767.47(2)
(2) Testimony relating to sexual relations or possible sexual relations of the mother any time other than the possible time of conception of the child is inadmissible in evidence, unless offered by the mother.
767.47(2m)
(2m) Medical and genetic information filed with the department of health and family services or the court under
s. 48.425 (1) (am) or
(2) is not admissible to prove the paternity of the child.
767.47(3)
(3) In an action against an alleged father, evidence offered by him with respect to an identified man who is not subject to the jurisdiction of the court concerning that man's sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone and made available to the court genetic tests as provided in
s. 767.48.
767.47(4)(a)(a) No person may be prosecuted or subjected to any penalty or forfeiture for or on account of any testimony or evidence given relating to the paternity of the child in any paternity proceeding, except for perjury committed in giving the testimony.
767.47(5)
(5) Except as provided in
sub. (6), upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order the witness to testify under oath and produce evidence concerning all relevant facts. The refusal of a witness, including a witness who has immunity under
sub. (4), to obey an order to testify or produce evidence is a contempt of the court.
767.47(6)(a)(a) Whenever the state brings the action to determine paternity pursuant to an assignment under
s. 46.261,
48.57 (3m) (b) 2.,
49.153 (3) (a),
49.19 (4) (h) 1. or
49.45 (19), or receipt of benefits under
s. 49.148,
49.155,
49.157 or
49.159, the natural mother of the child may not be compelled to testify about the paternity of the child if it has been determined that the mother has good cause for refusing to cooperate in establishing paternity as provided in
42 USC 602 (a) (26) (B) and the federal regulations promulgated pursuant to this statute, as of July 1, 1981, and pursuant to any rules promulgated by the department which define good cause in accordance with the federal regulations, as authorized by
42 USC 602 (a) (26) (B) in effect on July 1, 1981.
767.47(7)
(7) Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
767.47(8)
(8) The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under
s. 891.405 or
891.41 shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.
767.47(9)
(9) Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in
s. 891.40.
767.47(10)
(10) A record of the testimony of the child's mother relating to the child's paternity, made as provided under
s. 48.299 (8) or
938.299 [(6)] (8), is admissible in evidence on the issue of paternity.
767.47 Note
NOTE: Sub. (10) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1995 Wis. Act 77, but rendered surplusage by the treatment of this provision by
1995 Wis. Act 275. Corrective legislation is pending.
767.475
767.475
Paternity procedures. 767.475(1)
(1) Except as provided in
s. 767.045 (1) (c), the court may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a minor parent or minor who is alleged to be a parent in a paternity proceeding unless the minor parent or the minor alleged to be the parent is represented by an attorney.
767.475(3)
(3) Evidence as to the time of conception may be offered as provided in
s. 891.395.
767.475(4)
(4) Discovery shall be conducted as provided in
ch. 804, except that no discovery may be obtained later than 30 days before the trial. No discovery may solicit information relating to the sexual relations of the mother occurring at any time other than the probable time of conception.
767.475(5)
(5) The statute of limitations for commencing actions concerning paternity is as provided in
s. 893.88.
767.475(7)
(7) The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.
767.475(8)
(8) In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.
767.475 Annotation
A trust under sub. (7) is not restricted to where the custodial parent is a spendthrift. Paternity of Tukker M.O., 189 W (2d) 440, 525 NW (2d) 793 (Ct. App. 1994). See also Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
767.48
767.48
Genetic tests in paternity actions. 767.48(1)(a)(a) The court may, and upon request of a party shall, require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child's conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child's mother filed with the court, or after an examination under oath of a complainant or witness, when the court determines such an examination is necessary.
767.48(1)(b)
(b) The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father's paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if, at least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing.
767.48(1m)
(1m) Under
sub. (1), if the genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, the alleged father shall be rebuttably presumed to be the child's parent.
767.48(2)
(2) The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party.
767.48(3)
(3) In all cases, the court shall determine the number and qualifications of the experts.
767.48(4)
(4) Whenever the results of the genetic tests exclude the alleged father as the father of the child, this evidence shall be conclusive evidence of nonpaternity and the court shall dismiss the action. Whenever the results of the tests exclude any male witness from possible paternity, the tests shall be conclusive evidence of nonpaternity of the male witness. Testimony relating to sexual intercourse or possible sexual intercourse of the mother with any person excluded as a possible father, as a result of a genetic test, is inadmissible as evidence. If any party refuses to submit to a genetic test, this fact shall be disclosed to the fact finder. This refusal is a contempt of the court for failure to produce evidence under
s. 767.47 (5). If the action was brought by the child's mother but she refuses to submit herself or the child to genetic tests, the action shall be dismissed.
767.48(5)
(5) The fees and costs for genetic tests performed upon any person listed under
sub. (1) shall be paid for by the county except as follows:
767.48(5)(a)
(a) At the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests.
767.48(5)(b)
(b) If 2 or more identical series of genetic tests are performed upon the same person, the court may require the person requesting the 2nd or subsequent series of tests to pay for it in advance.
767.48(6)
(6) Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.
767.48(7)
(7) The court shall ensure that all parties are aware of their right to request genetic tests under this section.
767.48 Annotation
Where initial blood tests excluded alleged father and state moved for additional tests under (2), court erred in denying motion and dismissing action under (4). In re Paternity of S. J. K. 132 W (2d) 262, 392 NW (2d) 97 (Ct. App. 1986).
767.48 Annotation
Chain of custody, or authentication, must be established prior to admission of evidence under (1) (b). In re Paternity of J. S. C. 135 W (2d) 820, 400 NW (2d) 48 (Ct. App. 1986).
767.48 Annotation
Where respondent failed to introduce evidence regarding test, trial court properly barred respondent from attacking test during closing argument. In re Paternity of M. J. B. 144 W (2d) 638, 425 NW (2d) 404 (1988).
767.48 Annotation
See note to 904.01, citing State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
767.48 Annotation
DNA test results are admissible when procedures meet requirements for blood tests under (1) (b). In re Paternity of J.L.K. 151 W (2d) 566, 445 NW (2d) 673 (Ct. App. 1989).
767.48 Annotation
Where more than one set of blood test results are presented, sub. (1m) presumption is inapplicable where only one reached 99%. In re Paternity of J.M.K. 160 W (2d) 429, 465 NW (2d) 833 (Ct. App. 1991).
767.48 Annotation
Where only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. Paternity of Jeremy D.L. 177 W (2d) 551, 503 NW (2d) 275 (Ct. App. 1993).
767.48 Annotation
From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.
767.50(1)(1) The trial shall be divided into 2 parts. The first part shall deal with the determination of paternity. The 2nd part shall deal with child support, legal custody, periods of physical placement and related issues. At the first part of the trial, the main issue shall be whether the alleged or presumed father is or is not the father of the mother's child, but if the child was born to the mother while she was the lawful wife of a specified man there shall first be determined, as provided in
s. 891.39, the prior issue of whether the husband was not the father of the child. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct, and if requested by either party, before the introduction of any testimony in the party's behalf, shall direct the jury, in cases where there is a jury, to find a special verdict as to any of the issues specified in this section except that the court shall make all the findings enumerated in
s. 767.51 (2) to
(5). If the mother is dead, becomes insane, cannot be found within the jurisdiction or fails to commence or pursue the action, the proceeding does not abate if any of the persons under
s. 767.45 (1) makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant and material. The issues of child support, custody and visitation and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court.
767.50(2)
(2) If a jury is requested under
sub. (1), the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors.
767.50 History
History: 1979 c. 352 s.
10; Stats. 1979 s. 767.50;
1983 a. 27,
447;
1987 a. 27,
355,
403;
1993 a. 481.
767.50 Annotation
Preponderance of the evidence standard of proof in paternity actions meets due process requirement. Rivera v. Minnich, 483 US 574 (1987).
767.51
767.51
Paternity judgment. 767.51(1)(1) The judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.
767.51(2)
(2) The clerk of court shall file with the state registrar, within 30 days after the entry of the order or judgment, a report showing the names, dates and birth places of the child and the father and the maiden name of the mother on a form designated by the state registrar, along with the fee set forth in
s. 69.22 (5), which the clerk of court shall collect.
767.51(3)
(3) The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the legal custody and guardianship of the child, periods of physical placement, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. Unless the court orders otherwise, if there is no presumption of paternity under
s. 891.41 the mother shall have sole legal custody of the child. The court shall order either party or both to pay for the support of any child of the parties who is less than 19 years old and is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent. The judgment or order may direct the father to pay or contribute to the reasonable expenses of the mother's pregnancy and confinement during pregnancy and may direct either party to pay or contribute to the costs of genetic tests, attorney fees and other costs. Contributions to the costs of genetic tests shall be paid to the county which paid for the genetic tests.
767.51(3m)(a)(a) In this subsection, "health insurance" does not include medical assistance provided under
subch. IV of ch. 49.
767.51(3m)(b)
(b) In addition to ordering child support for a child under
sub. (3), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court enters a paternity judgment under this subsection, the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this paragraph. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.
767.51(3m)(c)1.1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h), or sent to the clerk of court or support collection designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under
s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under
s. 767.265. The clerk of court shall keep a record of all moneys received and disbursed by the clerk for health care expenses that are directed to be paid to the clerk and the support collection designee shall keep a record of all moneys received and disbursed by the support collection designee for health care expenses that are directed to be paid to the support collection designee.
767.51(3m)(c)2.
2. If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under
s. 767.265 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under
s. 767.265, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h).
767.51(3m)(d)
(d) If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:
767.51(3m)(d)1.
1. Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.
767.51(3m)(d)2.
2. Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county designee under
s. 59.53 (5).
767.51 Note
NOTE: Subd. 2. is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
767.51(3m)(d)3.
3. After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.
767.51(3m)(e)1.1. If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under
subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.
767.51(3r)(a)(a) In making an order of legal custody under
sub. (3), the court shall require a parent who is not granted legal custody to provide to the court medical and medical history information that is known to the parent. If the court orders joint legal custody, the court shall require each parent to provide to the court medical and medical history information that is known to the parent. The court shall keep the information confidential and may release it only as provided in this subsection. The information provided shall include all of the following:
767.51(3r)(a)1.
1. The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.
